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2017 DIGILAW 1504 (ALL)

GURUBAKSH v. STATE OF U. P.

2017-06-08

ABHAI KUMAR

body2017
JUDGMENT : Abhai Kumar, J. Heard Sri Ghanshyam Das, learned counsel for the appellants and the learned AGA for the State. 2. This appeal has been preferred against the judgment and order dated 13.10.2010 passed by Additional District & Sessions Judge/Fast Track Court No. 6, Ghaziabad, in Session Trial No. 283 of 2006 (State v. Gurubaksh) in Case Crime No. 796 of 2006 and in Session Trial No. 284 of 2006 (State v. Vikram) in Case Crime No. 797 of 2006, under Section 18/20 N.D.P.S. Act, Police Station Sihani Gate, District Ghaziabad, convicting the appellant Gurubaksh for twelve years of rigorous imprisonment with a fine of Rs. 1,20,000/- and in default in payment of fine to further undergo for two years additional simple imprisonment and convicting the appellant Vikram for 11 years rigorous imprisonment with a fine of Rs. 1,10,000/- and in default in payment of fine to further undergo for twenty months additional simple imprisonment. 3. During the course of argument appeal was not pressed on merit rather it is submitted that quantum of punishment that has been awarded by the trial court may be reduced to the minimum as follows: 1. Rigorous imprisonment to appellant Gurubaksh that has been awarded for 12 years and rigorous imprisonment awarded to the appellant Vikram for 11 years, may be reduced to 10 years; and 2. Additional simple imprisonment in default of payment of fine of Rs. 1,20,000/-, may be reduced from 2 years to appellant Gurubaksh and additional simple imprisonment in default of payment of fine of Rs. 1,10,000/-, to appellant Vikram, may be reduced from twenty months to six months. It is submitted by the learned counsel for the appellants that appellants are father and son and they have already undergone 10 years of rigorous imprisonment. It is further submitted that appellant Vikram who is son of Gurubaksh is the sole bread earner of the family. It is also submitted that there is no criminal history of the appellants and in case rebate as requested is granted, then they will not indulge themselves in any further illegal activities. 4. Learned AGA has opposed the prayer of the appellants. 5. The right of the court to reduce punishment has been discussed by the Hon'ble Apex Court in the case of Baldev Singh v. State of Haryana reported in 2015 (91) ACC 912. 6. 4. Learned AGA has opposed the prayer of the appellants. 5. The right of the court to reduce punishment has been discussed by the Hon'ble Apex Court in the case of Baldev Singh v. State of Haryana reported in 2015 (91) ACC 912. 6. It has been observed by the Hon'ble Apex Court that in the said case occurrence was of the year 1990 and the appellant has suffered a protracted proceeding of about twenty five years and in the facts and circumstances of the case, the sentence of imprisonment imposed on the appellant was reduced from 12 years to 10 years. 7. Learned counsel for the appellant submitted that in this case also incident took place in the year 2006 and since then, appellants are facing incarceration and are in jail for almost 10 years. 8. It is submitted by the learned counsel that without assigning any reason trial court awarded punishment more than the minimum prescribed. Learned counsel also submitted that provision of Section 32-B, can be taken into consideration for providing more punishment than the minimum that was also not considered. It is further submitted by the learned counsel that both the appellants are father and son and the contraband that was recovered from them was just higher than the minimum prescribed of the commercial quantity. It is submitted by the learned counsel that appellants were in jail from the date of incident i.e. 7.10.2006. Their bail was allowed on 24.11.2015 but bonds could not be filed immediately thereafter. Appellant Gurubaksh was finally released on 20.10.2016 whereas appellant Vikram is still in jail. 9. Hon'ble Apex Court in so many judgments have clearly stated that in such type of cases the punishment on default of payment of fine can be reduced. The leading judgement of the Hon'ble Apex Court in this regard is Shanti Lal v. State of M.P., reported in 2007 (Vol 11) SCC Page 243, in which issue/question as to whether the sentence on default of payment of fine may be reduced or not has been considered and discussed. The Hon'ble Supreme Court in paras 36 and 37 of the aforesaid judgement has observed and held as below:- "36. We are mindful and conscious that the present case is under the NDPS Act. Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. The Hon'ble Supreme Court in paras 36 and 37 of the aforesaid judgement has observed and held as below:- "36. We are mindful and conscious that the present case is under the NDPS Act. Section 18 quoted above provides penalty for certain offences in relation to opium poppy and opium. Minimum fine contemplated by the said provision is rupees one lakh fine, which shall not be less than one lakh rupees. It is also true that the appellant has been ordered to undergo substantive sentence of rigorous imprisonment for ten years which is minimum. It is equally true that maximum sentence imposable on the appellant is twenty years. The learned counsel for the State again is right in submitting that clause (b) of sub-section (1) of Section 30, CrPC authorizes the Court to award imprisonment in default of payment of fine up to one-fourth term of imprisonment which the Court is competent to inflict as punishment for the offence. But considering the circumstances placed before us on behalf of the appellant-accused that he is very poor; he is merely a carrier; he has to maintain his family; it was his first offence; because of his poverty, he could not pay the heavy amount of fine (rupees one lakh) and if he is ordered to remain in jail even after the period of substantive sentence is over only because of his inability to pay fine, serious prejudice will be caused not only to him, but also to his family members who are innocent. We are, therefore, of the view that though an amount of payment of fine of rupees one lakh which is minimum as specified in Section 18 of the Act cannot be reduced in view of the legislative mandate, ends of justice would be met if we retain that part of the direction, but order that in default of payment of fine of rupees one lakh, the appellant shall undergo rigorous imprisonment for six months instead of three years as ordered by the trial court and confirmed by the High Court. 37. For the reasons aforesaid, the appeal is partly allowed, conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for ten years is confirmed. An order of payment of fine of rupees one lakh is also upheld. 37. For the reasons aforesaid, the appeal is partly allowed, conviction recorded and sentence imposed on the appellant to undergo rigorous imprisonment for ten years is confirmed. An order of payment of fine of rupees one lakh is also upheld. But an order that in default of payment of fine, the appellant shall undergo rigorous imprisonment for three years is reduced to rigorous imprisonment for six months. To that extent, the appeal filed by the appellant is allowed. If the appellant has undergone substantive sentence of rigorous imprisonment for ten years as also rigorous imprisonment for six months as modified by us in default of payment of fine, the appellant shall be set at liberty forthwith unless he is required in any other offence. If the appellant has not completed the said period, he will be released after the period indicated herein above is over. The appeal is accordingly disposed of." 10. In view of the law propounded by Hon'ble Apex Court and the circumstances that are being mentioned by the appellants as above can be taken into consideration. So far as merits of the case is concerned, appeal is dismissed upon that, whereas quantum of punishment that has been awarded by the trial court is altered as below:- 1. Appellants - Vikram and Gurubaksh are awarded punishment of 10 years that has already been undergone by them. A further punishment of six months is awarded in case of default in payment of fine. 2. It is submitted by the learned counsel that appellant Gurubaksh has already deposited ?th of fine amount and only ?th amount is to be deposited. Accordingly, it is ordered that in case rest fine is not deposited by the appellant Gurubaksh, he will have to undergo punishment of four months imprisonment in default of payment of rest of the fine. 3. The period already undergone in the Jail will be considered and in case excessive period more than 10 years has been spent in the jail, same will be set off against the default in payment of fine. 11. In case appellant Gurubaksh does not deposit fine within one month from today, he will surrender before the trial court for undergoing punishment regarding the default in payment of rest of the fine. 12. 11. In case appellant Gurubaksh does not deposit fine within one month from today, he will surrender before the trial court for undergoing punishment regarding the default in payment of rest of the fine. 12. In case appellant Gurubaksh does not surrender before the trial court within the stipulated time, then the trial court will initiate proceeding regarding that for the compliance of the order of this Court. 13. The period undergone is to be calculated by the actual period spent by the appellants in the jail and it will be upon jail authorities to ascertain the detention of the appellants in the jail and in case appellants have spent less than 10 years in the jail, then appellants will have to be in jail for completing the stipulated 10 years. Only after completion of 10 years of detention, any further period of detention will be set off against the payment of fine. 14. The criminal appeal is, accordingly, partly allowed.